I've been asked by a number of people if there will be a recording or a transcript of this session, and the answer is YES: SVA recorded video, which they will make available soon on their Vimeo and iTunesU sites. I'll post the links here. In the meantime, I thought I should post my introduction...

It should be clear from the title of this session that our panel tonight is not structured as a debate between those with opposing views on appropriation. Nor is our purpose to parse the arguments put forward in recent high profile copyright infringement lawsuits, though I’m sure we will touch upon these during the course of the evening. Instead, our purpose here is to revisit the meaning and value of appropriation and to clarify its place in the visual arts; a place explicitly established in artistic practices since the birth of Modernism (and, actually, throughout human history). It is my hope that in doing so, we may begin to reframe this currently polarized and over-hyped debate, and bring forward a more productive narrative. To that end, I’ve invited speakers from different corners of the art world who approach the subject of appropriation according to their different backgrounds and vantage points: Oliver Wasow is a visual artist who teaches as well as curates; Rob Storr is a curator and art historian who teaches, and who is also an artist; and Virginia Rutledge is an attorney specializing in intellectual property law, who is also an art historian and a curator. Tonight they will bring their expertise to bear on the problem and importance of appropriation in visual art.

So. What is actually meant by “appropriation” and why do we need to make a case for it? Isn’t it the same thing as “copying”? and isn’t copying the same thing as “plagiarism”? Isn’t plagiarism and therefore appropriation a form of “theft”? why would anyone want to defend theft? By defending appropriation are we saying we are against private property? Are we against authors’ rights? Shouldn’t authors and artists be paid for their work? Isn’t the purpose of copyright to allow authors to stop others from using their work without permission? without paying? without attribution?

And so goes the logic that has brought us to this point.

Before I introduce our panelists, I will offer a brief consideration of appropriation and a few arguments as to why I think we, as artists, educators, students, curators, historians and law makers, need to make a case for it.

“Appropriation art” in the narrowest sense of the term, made its name during the nineteen eighties in New York. Drawing on earlier traditions of collage and montage up through Pop Art, appropriation artists subverted, re-photographed, and re-purposed topical material, paving the way for contemporary approaches to art-making now further enabled by digital technology.

The word “appropriation” is from the Latin root that means to “take as one’s own”. It carries some negative baggage, guilt acquired through association perhaps: for instance, the “wrongful appropriation” that is plagiarism. But broadly speaking, to appropriate something in visual art means basically to copy it, in order to use it or some aspect of it, for some creative purpose. So to “take as one’s own” becomes toremakeas one’s own. Less loaded terms for appropriation might be “referencing” or “quoting”. Quotation is certainly a form of appropriation, and when we quote something as visual artists, using visual tools and visual language, we COPY it. In that sense, painting from life or en plein air, and by extension, the medium of photography itself, are nothing if not different forms of appropriation. Memory itself has been characterized as a form of appropriation.

Artists have always referenced and utilized – appropriated – pre-existing materials, including other art, as part of their source material, and as a way to engage in dialogue, whether through explicit copying or unconscious borrowing. Some may feel that where copying is achieved digitally, it crosses some ethical line, but digital technology has merelyprovided us with our latest set of tools for our age-old habits of copying and remixing.

So what am I saying – that what is really at stake here is Copying?

Fueled by the ongoing backlash against digital culture, common forms of visual quotation have come increasingly under attack. Copyright infringement lawsuits, many of them meritless, have been on the rise, including those brought by artists against fellow artists. The freedom to tinker, comment, reference or borrow – the way art progresses over time – is being undercut. At stake is our ability to work in what has become an atmosphere of increasing litigiousness, and hence, of paranoia and self-censorship.

The recent spike in copyright infringement litigation is nothing short of alarming – obscene, actually, considering the costs involved. There have been many controversial and high profile copyright infringement cases in the news, but we can be sure that there are many, many more cases than the ones you’ve read about in Artnet, Artinfo and The New York Times, and these involve non-celebrity artists who have neither access to legal expertise nor the deep pockets that would allow them to protect themselves. But the high profile cases are the ones that have generated an atmosphere of nervousness and dread that continues to spread by ripple effect throughout the art community. And the thing is, regardless of the eventual legal outcomes of these cases, their most negative effect has already been achieved. In law they call this a CHILLING EFFECT, which is when a legal action of any kind causes people to hesitate to exercise their legitimate right to express themselves for fear of legal repercussions. In reality it can be harmful in any number of ways, including to markets, but my concern mainly, is how chilling effects are harmful to artists.

Free speech and free expression: that is what is at stake here.

Free expression, as Princeton computer scientist Ed Felton puts it, requires the freedom to tinker. The inhibition of the freedom to tinker undercuts all creativity; it stops us from inquiring and from experimenting; it chills us in our pursuit of all that we, as artists and creative people, need to pursue. As citizens, all our civil rights begin with free speech; what is at stake then, is what is most basic.

Consider this, put forward by attorney and fair use advocate William Patry in an article about his most recent book on copyright reform – perhaps it’s not what you might expect to hear from an IP lawyer. Patry writes:

“Record companies, book publishers, movie studios and other media corporations are caught up in efforts to equate all copying of their works with theft. In fact, if we genuinely want to promote creativity, we must encourage copying. The idea that people copy because they lack creativity is powerfully harmful, and it runs counter to the history of copyright. [I must add: it runs counter to the history of making art]. To deny people the right to copy, intimately, from others, is to deny the essence of what it is to be a creative person.”

But if copying and appropriation are age-old and part of visual art’s lexicon, you may wonder, why the sudden backlash? When did our understanding (or misunderstanding) of appropriation change, and so radically? Perhaps we can blame the anti-piracy propaganda generated by the music and motion picture industries – their paranoia campaign has finally penetrated the art world’s walled garden. But rather than blame the music industry, we who are vested in the arts for whatever reason, must take responsibility for this problem by examining our own flawed assumptions. We need to think again and think hard about the conditions required for creativity; we need to revisit the complex and layered history of art-making itself. And as issues of appropriation enter the broader public and legal debate, artists, historians, curators and others who are part of the visual arts community need to step up and explain why appropriation and other forms of visual referencing are essential to the making of meaningful art. We need to be able to defend our practices in clear language, in and beyond the courtroom. We need to make the case for appropriation.

Our Panelists:

Virginia Rutledge is an art historian and attorney. Previously an exhibition associate at the Los Angeles County Museum of Art, a litigator at Cravath, Swaine & Moore LLP, and the Vice President and General Counsel of the nonprofit Creative Commons, she is now in private practice focusing on art, intellectual property, and related transactions and ventures, both commercial and nonprofit. Virginia has chaired the Art Law Committee of the New York City Bar Association and was the curator of the 2011 Texas Biennial, a collaborative project involving over 60 contemporary visual arts organizations across the state.

Rob Storr is an artist, critic, curator and in 2006 was appointed Professor of Painting and Dean of the School of Art at Yale University. He was curator in the Department of Painting and Sculpture at the Museum of Modern Art, New York, from 1990 to 2002. Mr. Storr has taught at the Institute of Fine Arts, NYU, at CUNY, the Bard Center for Curatorial Studies, Rhode Island School of Design, Tyler School of Art, New York Studio School, and at Harvard. He has written numerous catalogs, articles, and books, and is the recipient of many honors and awards, too many to name here. He is currently Consulting Curator of Modern and Contemporary Art at the Philadelphia Museum of Art, and in 2007 was chosen commissioner of the 2007 Venice Biennale, the first American invited to assume that position.

Oliver Wasow is an artist working with photography and other related media. He has participated in a number of major museum shows, such as “Image World” at the Whitney, and “Utopia/Post Utopia” at Boston’s ICA. His work will be included in the forthcoming exhibition at the Metropolitan Museum of Art, “Faking It: Manipulated Photography Before Photoshop,” to open in October 2012. He is the recipient of two grants from the New York State Council on the Arts, and a Louis Comfort Tiffany Foundation Award. In addition to his career as an artist, Mr. Wasow has also been involved in the art world in a curatorial capacity. From 1983 to 1987 he was the owner and director of The Cash/Newhouse Gallery in New York’s East Village, and he has organized a number of independent exhibitions. Most recently he has co-curated the exhibition “Artist Unknown,” an exhibition of thousands of vernacular images culled from the Internet at the Center for Art and Culture in Hollywood, Florida, (October 29, 2011–January 29,2012).

Our Moderator:

Joy Garnett is a painter, writer and media artist who lives in Brooklyn. Her paintings are based on found images of explosive events, while her social media performances examine the intersections of our digital and material worlds. She has written widely on the subject of fair use and copyright in the arts, and posts regularly about current developments to her blog Newsgrist; she also writes and edits for the contemporary media journal Cultural Politics, published by Duke University Press. Her work has been associated with appropriation art since 2004 when a controversy over one of her paintings reinvigorated the discussion about issues of authorship and fair use in the visual arts. She has been a vocal advocate for preserving our visual commons ever since.

Adrian Hon is the Founder and Chief Creative at Six to Start, an online games company; he originally trained as a neuroscientist at Cambridge and Oxford. He takes a strong interest in the controversies surrounding intellectual copyright. Follow Adrian on Twitter at @adrianhon

On Tuesday 14th, the Serious Organised Crime Agency (SOCA) posted a message on RnBXclusive.com, stating: "If you have downloaded music using this website you may have committed a criminal offence which carries a maximum penalty of up to 10 years imprisonment and an unlimited fine under UK law."

SOCA's threat is a stirring defence of what we hold dear in this country – the right of a creator to benefit from their intellectual property, whether it be a song, book, film, or game. Without this assurance of compensation, we might not see any new creative works being produced at all, and so it's for this reason that we've continually lengthened copyright terms from 14-28 years as set out by the Statue of Anne in 1710 to "lifetime plus 70 years" today.

Yet now, as we've instituted decade-long jail terms and unlimited fines for copyright infringers, it's time to take the next step in extending copyright terms even further.

Imagine you're a new parent at 30 years old and you've just published a bestselling new novel. Under the current system, if you lived to 70 years old and your descendants all had children at the age of 30, the copyright in your book – and thus the proceeds – would provide for your children, grandchildren, great-grandchildren, and great-great-grandchildren.

But what, I ask, about your great-great-great-grandchildren? What do they get? How can our laws be so heartless as to deny them the benefit of your hard work in the name of some do-gooding concept as the "public good", simply because they were born a mere century and a half after the book was written? After all, when you wrote your book, it sprung from your mind fully-formed, without requiring any inspiration from other creative works – you owe nothing at all to the public. And what would the public do with your book, even if they had it? Most likely, they'd just make it worse.

No, it's clear that our current copyright law is inadequate and unfair. We must move to Eternal Copyright – a system where copyright never expires, and a world in which we no longer snatch food out of the mouths of our creators' descendants. With eternal copyright, the knowledge that our great-great-great-grandchildren and beyond will benefit financially from our efforts will no doubt spur us on to achieve greater creative heights than ever seen before.

However, to make it entirely fair, Eternal Copyright should be retroactively applied so that current generations may benefit from their ancestors' works rather than allowing strangers to rip your inheritance off. Indeed, by what right do Disney and the BBC get to adapt Alice in Wonderland, Sleeping Beauty, and Sherlock without paying the descendants of Lewis Carroll, the Brothers Grimm, and Arthur Conan Doyle?

Of course, there will be some odd effects. For example, the entire Jewish race will do rather well from their eternal copyright in much of the Bible, and Shakespeare's next of kin will receive quite the windfall from the royalties in the thousands of performances and adaptations of his plays – money well earned, I think we can all agree.

Naturally, we'll need a government-controlled bureaucracy to track the use of copyrighted material from all of history and to properly apportion royalties to the billions of beneficiaries in a timely manner. There are some downsides; for example, we can expect countless legal cases to spring up concerning the descent of various famous creators, which will unfortunately gum up our courts for the indefinite future, but it's a price worth paying in order to put things right.

A bold idea such as Eternal Copyright will inevitably have opponents who wish to stand in the way of progress. Some will claim that because intellectual works are non-rivalrous, unlike tangible goods, meaning that they can be copied without removing the original, we shouldn't treat copyright as theft at all. They might even quote George Bernard Shaw, who said, "If you have an apple and I have an apple and we exchange these apples then you and I will still each have one apple. But if you have an idea and I have an idea and we exchange these ideas, then each of us will have two ideas."

Such opponents are condoning criminal activity, plain and simple, and are frankly no better than criminals themselves. Why would anyone want to create new ideas and intellectual works if they can't benefit from them in perpetuity? Are we to believe that people have motivations other than the purely financial and quantifiable? And are they suggesting we should continue to allow modern "creators" to sully the legacy of legends like Jane Austen and Hans Christian Andersen with their pointless, worthless adaptations, remixes, and reinterpretations of Pride and Prejudice and The Emperor's New Clothes?

In the interests of full disclosure, I do want to point out a genuine problem with Eternal Copyright, in that it will be difficult to enforce due to the inherently criminal nature of digital technology, which allows information to be copied perfectly and instantly. Absent a complete ban of the technology, which admittedly would be a little draconian, one obvious solution would be to hard-wire digital devices to automatically detect, report, and prevent duplication of copyrighted material. Yes, this might get the libertarians and free-speech crazies out protesting, but a bit of fresh air wouldn't do them any harm.

Certainly we wouldn't want to listen to their other suggestions, which would see us broaden the definition of "fair use" and, horrifically, reduce copyright terms back to merely a lifetime or even less. Not only would such an act deprive our great-great-grandchildren of their birthright, but it would surely choke off creativity to the dark ages of the 18th and 19th centuries, a desperately lean time for art in which we had to make do with mere scribblers such as Wordsworth, Swift, Richardson, Defoe, Austen, Bronte, Hardy, Dickens, and Keats.